The shape of the list
Twenty five numbered powers, introduced by a single qualifying phrase.
Except as limited or restricted by this code, a trustee may:
Section 736.0816, Florida Statutes, opening words. Enacted in 2006; amended in 2007 and 2016.
Most of what follows is plumbing, and useful precisely because it is boring. The trustee may acquire and sell property, exchange or partition it, deposit money, borrow and mortgage, continue a business, exercise the rights of an absolute owner over securities, repair and develop real estate, lease, grant options, insure, abandon worthless property, settle claims, pay taxes, allocate between income and principal, make tax elections, deal with retirement benefits, and wind the trust up.
Read this alongside section 736.0815, the general grant, and one thing becomes clear. A Florida trustee’s problem is almost never whether they had the power. It is whether exercising it was consistent with their duties.
The subsection that should make a beneficiary sit up
Subsection (20) permits a trustee to employ professionals, and then keeps going in a direction most people would not expect. It permits employing attorneys, accountants, investment advisers or agents even if they are the trustee, an affiliate of the trustee, or otherwise associated with the trustee, and paying them reasonable compensation from trust assets. It then permits the trustee to act without independent investigation on the recommendations of such persons.
So the statute contemplates a trustee hiring their own firm, paying that firm from the trust, taking its advice, and not checking it. The only limit stated in the subsection itself is a cross reference to section 736.0802(10), which concerns attorney fees and costs.
That obviously sits in tension with the duty of loyalty, under which a trustee shall administer the trust solely in the interests of the beneficiaries. The tension is real and it is not resolved by anything in this section. No Florida decision we located construes that clause. The one case that engages this section substantively cites subsection (20) for the ordinary proposition that a trustee may employ attorneys, and never reaches the affiliate language or the no independent investigation language.
Two other subsections deserve a flag. Subsection (3) allows a trustee, or an affiliate, to take fund level compensation in addition to the trustee fee, provided it is fully disclosed in writing to all qualified beneficiaries, so disclosure is the entire safeguard. And subsection (1) permits holding trust property in a nominee name without disclosure of the trust, which is difficult to square with section 736.0810(3) requiring the trust’s interest to appear in third party records. Nobody has reconciled those two.
The case that draws a line on fees
The only decision our review found that genuinely construes this section is a Fourth District case about legal fees charged to a trust. The court set out the powers.
Section 736.0816(20), Florida Statutes (2019), empowers a trustee to employ attorneys to advise or assist the trustee in the performance of its administrative duties. This includes the power to defend the trust property in a judicial proceeding. The section grants the trustee the power to “[p]rosecute or defend, including appeals, an action, claim, or judicial proceeding in any jurisdiction to protect trust property or the trustee in the performance of the trustee’s duties.” § 736.0816(23), Fla. Stat. (2019).
Bronstein v. Estate of Bronstein, No. 4D20-2661 (Fla. 4th DCA Dec. 22, 2021). The opinion carries the legend “Not final until disposition of timely filed motion for rehearing” and no reporter citation had issued when we reviewed it.
And then split the fees in two. Fees incurred defending the accountings were properly charged to the trust.
He was entitled to charge the trust for the attorney’s fees and costs in defending his actions as trustee. § 736.0816(23), Fla. Stat. (2019).
Bronstein v. Estate of Bronstein, No. 4D20-2661 (Fla. 4th DCA Dec. 22, 2021).
Fees incurred on an unsuccessful appeal were not, because charging them to the trust breached the duty of loyalty under section 736.0802(1), which requires a trustee to administer the trust solely in the interests of the beneficiaries. Reversed in part, affirmed in part.
That is the practical rule to carry away. The power in subsection (23) is real, and it is not a blank cheque. Defending the administration is defending the trust. Pursuing a fight that serves the trustee rather than the beneficiaries is something the duty of loyalty reaches even though the power exists.
One other decision applies subsection (23) without construing it, holding that a trustee had the right to prosecute or defend an action to protect trust property, in a standing dispute. If you look that case up, note that the court issued a second opinion which expressly withdrew the first and replaced it; the later one is the live decision and is final on release.
What we have not read, and why we are saying so
Our search identified ten documents citing this section. We read seven and three remain unread, because a site wide verification challenge on the research database stopped the pass partway through. We would rather name them than describe the sweep as complete.
The three are Harrell v. Badger, 171 So. 3d 764, which cites subsection (20); Jervis v. Tucker, 82 So. 3d 126, which cites this section alongside two attorney fee provisions; and R.I. v. Department of Children and Families, 47 So. 3d 357. Any of them could add to the picture and none of them is reflected above.
We also record that one decision citing this section carries a scanning error in its text, rendering the section number with a comma in place of the decimal point, in a document whose transcription is damaged throughout. It cites the section in a footnote and decides an unrelated procedural question, so nothing on this page depends on it.